Petrow & Giannou v. Shewan

Decision Date19 April 1922
Docket Number22523
Citation187 N.W. 940,108 Neb. 466
PartiesPETROW & GIANNOU ET AL., APPELLANTS, v. WILLIAM SHEWAN, APPELLEE
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed and dismissed.

Judgment reversed and cause dismissed.

Montgomery Hall & Young, for appellants.

Robert A. Nelson and W. H. Herdman, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN, DAY and FLANSBURG, JJ.

OPINION

FLANSBURG, J.

This was an action under the workmen's compensation law. The plaintiff, William Shewan, recovered an award before the compensation commissioner, and an appeal was taken to the district court, where the matter was tried, the award confirmed, and a decree entered in favor of the plaintiff. The defendants, Petrow & Giannou, have appealed to this court.

The first question presented is whether or not the plaintiff was an employee of the defendants, as distinguished from an independent contractor.

The evidence is substantially without conflict. The defendants conduct an ice cream, soda and candy shop on Farnam street in the city of Omaha. They planned to fit up a small adjoining room, to be used in conjunction with their business. The room was to have a cement floor, certain plumbing fixtures, a sink, and a floor drain. Defendant Giannou spoke to Mr. R. W. Shewan, the father of the plaintiff, who was the engineer of the building in which the candy shop was located, and asked him if he could not do the plumbing for them. He replied that he was not a member of the union, but that his son was a plumber and could do the work. Defendant Giannou then requested that he ask his son, the plaintiff, to do the work. No mention was made as to what the rate of pay would be, nor as to what would be the total cost. Mr. Shewan that evening delivered the message to plaintiff, and the next morning plaintiff appeared at the candy shop. He went with Mr. Shewan and the defendant Giannou to the room where the work was to be done, and what was wanted was explained to him. Defendant told him to go ahead and do the work and to secure whatever material was necessary and defendants would pay for it. Nothing was said about the wages to be paid the plaintiff, although defendant testified that he expected to pay plumber's wages; nor was anything said about the work being done for a lump sum. Plaintiff worked during that day, and late in the afternoon sustained an injury to his eye. He went immediately with his father to a doctor. No report of the injury was made to the defendants for two or three days afterwards. At that time, having noticed that the work was not proceeding, they inquired of Mr. Shewan and were informed that plaintiff had sustained injury. They told Mr. Shewan that the work would have to go on, as they were in need of its being finished and ready for use. The plaintiff, being informed of this, thereupon sent another plumber to finish the job. This man went to the candy shop; he reported to no one, but immediately commenced upon the work, and after working a day and a half completed it. Only once during his work did he have any conversation with either of the defendants, and this conversation was when defendant Giannou entered the room and stated that the floor drain would have to be raised a little above the floor, for the reason that the floor was to be cemented. After the work was completed, the plaintiff rendered a bill, showing cost of materials of $ 24.50, and showing 20 hours' labor at $ 1.25 an hour, being according to the union scale of wages for plumbers. This included 8 hours' labor for himself, and 12 hours for his substitute. The bill, inclosed in an envelope, was delivered to the defendants by Mr. Shewan, the plaintiff's father, who testified that he did not look at the bill, nor know of its contents. The defendants drew a check in favor of plaintiff's father, he having stated that it was immaterial whether the check should be made out to him or to his son. The check was delivered by him to the plaintiff. The plaintiff paid the plumber who completed the work $ 15 for 12 hours' work.

The issue as to whether or not a workman is an employee, as distinguished from an independent contractor, is to be determined from all the facts in the case. There is no single test by which that determination can be made. An independent contractor is generally distinguished as being a workman who is independent in his employment; one who contracts to do a particular piece of work according to his own method, and is not subject to the control of his employer, except as to the results of his work. He is not in such a case a servant of his employer; nor can he be controlled by the employer in the manner of doing the work, except to the extent that the employer has the right to give such directions as may be found necessary to insure compliance with the contract. Barrett v. Selden-Breck Construction Co., 103 Neb. 850, 174 N.W. 866; Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889; Powley v. Vivian & Co., 154 N.Y.S. 426. As particularly applicable to the facts in this case, see Roberts v. Industrial Accident Commission, 197 P. 978; Otmer v. Perry, 94 N.J.L. 73, 108 A. 369; Matter of Litts v. Risley Lumber Co., 224 N.Y. 321, 120 N.E. 730; Helton v. Tall Timber Lumber Co., 148 La. 180, 86 So. 729; City of Groesbeck v. Pinson, 21 Tex. Civ. App. 44, 50 S.W. 620.

The defendants in this case were not plumbers. They were not contractors nor builders, and did not understand the manner in which plumbing should be done. In no way did they attempt to control, nor did their agreement give them the right to control, the plaintiff as to the methods, means or procedure to be employed. The plaintiff was employed to do the specific work as an entirety. The question of the time which would be consumed in doing the work was not mentioned; nor was the total cost. The defendants quite evidently gave to him the right to conduct the work as he saw fit, according to his own methods. He was to procure the necessary materials, and the defendants were to pay for the materials and pay the reasonable plumber's charges for the work done. Though the defendants, as the testimony in their behalf shows, understood their contract to mean that the plaintiff was to receive pay at the rate of regular plumber's wages per hour, still the measure or method of payment, though often insignificant, is not a controlling criterion as to the relationship between the parties. It is significant that when the plaintiff was injured, he, himself, arranged for a substitute to complete the work, and that his substitute worked apparently for him, and not for the defendants. The substitute did not report to the defendants before entering upon the work, nor did he render them a bill after he had finished. The plaintiff paid him for the time that he was employed, and rendered a statement to the defendants, covering the entire cost of materials, and of the labor contributed both by himself and by his substitute.

The parties construed their contract as one whereby the plaintiff agreed to perform the work according to plan. It was not material that he personally perform it, but, within the contemplation of the parties, that he should accomplish it in the manner he pleased, and employ a helper or a substitute should he desire. After he sustained his injury and quit work, it was several days before the defendants made inquiry as to why the work was not progressing. It is evident from this that the plaintiff was recognized as having...

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